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Supreme Court 22 June 2016

R v Xie (No 22)

[2016] NSWSC 1923

Sexual offencesHomicide
CRIMINAL LAW ADMISSIBILITY OF COMPLAINT EVIDENCE

Citation: R v Xie (No 22) [2016] NSWSC 1923
Court: Supreme Court of New South Wales
Date: 22 June 2016
Judge: Fullerton J

Background

The accused faced a retrial on five counts of murder following a hung jury in December 2015. The prosecution alleged that he had murdered five members of the Lin family in July 2009. Central to the Crown case was evidence from a surviving family member, referred to as Ms Lin, that the accused had indecently assaulted her before the murders and sexually assaulted her repeatedly afterwards, until his arrest in May 2011. The Crown sought to use this evidence as proof of a sexual motive to kill.

During the 2015 trial, Ms Lin gave evidence, without objection, that she had disclosed the sexual abuse to several people, including a friend (Ms BC), another friend (Ms CD), and a legal academic (Professor Parkinson) from whom she had received advice in unrelated proceedings. At that earlier trial, the complaint evidence was admitted only for the limited purpose of assessing Ms Lin's credibility, and the recipients of her complaints were not called to give evidence.

For the retrial, the Crown sought to go further: to call Ms BC, Ms CD, and Professor Parkinson to give evidence of Ms Lin's complaints under section 66(2) of the Evidence Act 1995 (NSW), that is, as evidence that the conduct complained of actually occurred. The accused objected to the admission of any complaint evidence.

  • Whether the complaint evidence was relevant under section 55(1) of the Evidence Act 1995 (NSW), given the accused's position that he would not put deliberate falsity to Ms Lin but only that she was mistaken.
  • Whether the complaints to Ms BC, Ms CD, and Professor Parkinson qualified as admissible hearsay under section 66(2), including whether the representations were made when the events were fresh in Ms Lin's memory.
  • Whether the complaint to Ms BC was too general in nature to qualify as a complaint at all.
  • Whether the evidence should be excluded under section 137 of the Evidence Act because any probative value was outweighed by the risk of unfair prejudice to the accused.

Decision

Relevance under section 55(1)

Fullerton J rejected the submission that the complaint evidence was irrelevant because the accused would only challenge Ms Lin on the basis of mistaken belief rather than deliberate fabrication. Her Honour held that whether the accused sexually abused Ms Lin was plainly a fact in issue: the Crown's motive case depended on the jury accepting that the abuse occurred. A suggestion that Ms Lin was wholly mistaken was itself a challenge to her reliability and raised a question of credibility. The court also noted that Ms Lin's evidence bore on the movements of the accused within the family home, which was relevant to assessing alibi evidence.

Freshness under section 66(2)

Her Honour considered whether the representations were made when the events were fresh in the memory of the maker, as required by section 66(2). In relation to the 2014 disclosures to Ms CD and Professor Parkinson (made three to five years after the abuse), the court acknowledged that the delay was significant but found that the nature of the conduct, including its repeated and emotionally disturbing character, supported a finding that memory of the events would have endured. The demeanour of Ms Lin when recounting the abuse to those witnesses further supported that conclusion. Fullerton J was satisfied that all the complaint evidence was admissible for a hearsay purpose under section 66(2).

Generality of the complaint to Ms BC

The accused argued that Ms Lin's disclosure to Ms BC ("something similar had happened to me") was too vague to qualify as a complaint. Her Honour examined the particular circumstances of that disclosure and was satisfied it met the requisite threshold, though the detailed reasoning on this point is partly contained in the section of the judgment not reproduced in full.

Exclusion under section 137

The accused sought exclusion of the complaint evidence on the basis that the jury would accord it undue weight. Fullerton J rejected this submission. She found the evidence strongly probative both as hearsay under section 66(2) and as credit evidence. Because the underlying sexual conduct evidence had already been admitted, admission of corroborative complaint evidence did not create the kind of unfair prejudice with which section 137 is concerned. The complaint evidence was admitted.

Orders Made

• The complaint evidence the Crown proposes to lead will be admitted.

Key Takeaways

  • A submission that a complainant is mistaken, rather than deliberately lying, does not remove the complaint evidence from relevance; the complainant's credibility and reliability remain facts in issue under section 55(1) of the Evidence Act 1995 (NSW).
  • Under section 66(2) of the Evidence Act, freshness of memory is not defeated by a significant delay alone. Where the conduct was repeated, emotionally disturbing, and memorable, a court may find that the events remained fresh in the maker's memory even years after they occurred.
  • The Supreme Court confirmed that complaint evidence may be admitted both for a hearsay purpose (that the conduct occurred) and as evidence relevant to the complainant's credibility, consistently with the High Court's analysis in IMM v The Queen [2016] HCA 14.
  • Admission of complaint evidence corroborating already-admitted tendency or motive evidence does not, without more, create the unfair prejudice contemplated by section 137.
  • The decision addresses only admissibility in a specific retrial context. It does not alter the general framework governing complaint evidence but illustrates how courts assess the cumulative probative effect of disclosures made at different times to different recipients.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), including sections 130A
- Evidence Act 1995 (NSW), including sections 55(1), 66(2), 137
- Jury Act 1977 (NSW), section 55F

Cases
- IMM v The Queen [2016] HCA 14
- JB v R [2009] NSWCCA 263
- R v Colquhoun (Court of Criminal Appeal, 28 October 1992, unreported)
- R v Gregory-Roberts [2016] NSWCCA 92
- R v XY [2010] NSWCCA 181
- R v Xie (No 6) [2015] NSWSC 2119
- R v Xie (No 10) [2014] NSWSC 1976